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ACLU sues over NSA surveillance program

The American Civil Liberties Union filed a lawsuit yesterday challenging the constitutionality of the U.S. government’s surveillance program that collects from U.S. phone companies the call records of tens of millions of Americans.

It is the first substantive lawsuit following reports in The Washington Post and the Guardian last week detailing two sweeping surveillance programs run by the National Security Agency under laws authorized by Congress after the Sept. 11, 2001, attacks.

The ACLU suit, filed in the U.S. District Court for the Southern District of New York, challenges the legality of the spy agency’s collection of customer “metadata,” including the phone numbers dialed and the length of calls. The lawsuit is asking the court to force the government to end the program and purge any records it has collected.

The program, first disclosed by the Guardian, collects such information, used by intelligence analysts to detect patterns and personal connections, on every phone call made or received by U.S. customers of major American phone companies. The once-secret program was acknowledged last week by Director of National Intelligence James Clapper, who is named in the ACLU lawsuit.

The suit was filed hours after Sen. Ron Wyden, an Oregon Democrat, a member of the Senate Intelligence Committee, accused Clapper of failing to give “straight answers” about the scope of the NSA’s surveillance programs during a committee hearing in March.

In that open hearing, Wyden, a longtime critic of the administration’s surveillance policy, asked Clapper if the NSA “collect(s) any type of data at all on millions or hundreds of millions of Americans.” Clapper responded, “No sir.”

But the recent disclosures of the NSA surveillance initiatives, which the Obama administration says are authorized under the Patriot Act, has focused attention on the truthfulness of Clapper’s response.

In addition to the phone records, The Washington Post reported on a surveillance program known as PRISM, which allows the government to collect video, photos, emails, documents and connection logs for the users of the nation’s nine leading Internet companies. The government obtained the data through orders approved by the secret court established by the Foreign Intelligence Surveillance Act, or FISA.

In an interview with NBC News over the weekend, Clapper, who complained at the start of the March hearing that “an open hearing on intelligence matters is a contradiction in terms,” acknowledged that his answer to Wyden was the “least untruthful” he could provide given the secret nature of the program.

Asked yesterday whether President Obama believes the national intelligence director had been truthful in his testimony, White House Press Secretary Jay Carney said, “He certainly believes that Director Clapper has been straight and direct in the answers that he’s given and has actively engaged in an effort to provide more information about the programs that have been revealed through the leak of classified information.”

The ACLU lawsuit will bring the surveillance programs into federal court, setting up a challenge for Obama, who pledged during his 2008 presidential campaign to bring more transparency and proportion to national security policy after the George W. Bush administration.

According to a classified court order to Verizon Business Network Services, published by the Guardian, the NSA has directed the company to turn over “all call detail records” of customers under Section 215 of the Patriot Act.

Clapper stressed last week that the NSA does not receive phone call content or a subscriber’s identity under the program. He also said that before the data can be searched, the NSA must have “reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.”

But the ACLU challenged that modest characterization, saying in its lawsuit that the program’s scope is “akin to snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long and from where.”

“It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, professional, religious and intimate association,” the lawsuit states.

The ACLU asserts that it has standing to sue the government over the program because it is a Verizon customer, overcoming a hurdle that has blocked previous attempts to challenge such secret programs.

The organization also contends that the NSA’s surveillance will have a “chilling effect” on whistleblowers who would otherwise contact the group for help.

“The Obama administration has demonstrated a strong commitment to protecting whistle-blowers,” Carney told reporters yesterday. “Whistle-blowers can play an important role in exposing waste, fraud and abuse. There are established procedures that whistle-blowers can employ that also protect, or rather ensure protection of national security interests.”

The collection program, officials said, began in 2006. Several lawmakers have warned cryptically that its details, if revealed, would alarm Americans. But the program’s classified nature, they said, prevented public debate.

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